S. Sathya v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.01.2016

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.1710 of 2015 S.Sathya .. Petitioner Vs.

1.The State of Tamil Nadu, Rep by The Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai 600 009.

2.The Commissioner of Police, Office of the Commissioner of Police, Tiruchirappalli City, Tiruchirappalli.

3.The Superintendent of Central Prison, Central Prison, Tiruchirappalli.

.. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records in detention order passed in C.No.42/Detention/C.P.O/TC/2015, dated 30.11.2015, on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely Sivasankar S/o.Angamuthu, Male, aged about 30 years, who is detained in Central Prison, Tiruchirappalli before this Court and set him at liberty.

For petitioner : Mr.V.Kathirvel Senior Counsel K.A.S.Prabhu For Respondents : Mr.A.Ramar Additional Public Prosecutor

O R D E R

*********** [Order of the Court was made by P.R.SHIVAKUMAR, J.] The petitioner is the wife of the detenu. He has been detained by the second respondent by his order in Detention Order in C.No.42/Detention/C.P.O/TC/2015, dated 30.11.2015, holding him to be a "Bootlegger", as contemplated under Section 2(b) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.751 of 2015 registered on the file of Tiruchy City PEW for offence punishable under Section 4(1) (aaa) r/w 4(1-A) [Transport] TNP Act 1937.

2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "Bootlegger" and that his presence at large would be prejudicial to the maintenance of public order and public health and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.

3. Though a number of grounds have been raised assailing the order of detention, the learned counsel for the petitioner mainly relies on the following contention:- "There was denial of reasonable opportunity to challenge the order of detention in an effective manner by the non-supply of a copy of the Government Order extending the delegation of power to the Detaining Authority. The failure to supply a copy of the Government Order even after a representation was made in writing seeking supply of the same amounts to denial of reasonable opportunity vitiating the order of detention itself".

4. The submissions made by the learned Additional Public Prosecutor in reply to the above said contention raised by the learned counsel for the petitioner are also heard.

5. So far as the contention of the learned counsel for the petitioner regarding the non-furnishing of the Government Order is concerned, admittedly, the power delegated to the Detaining Authority was being periodically extended by fresh Government Orders passed once in three months and a copy of the latest Government Order extending the delegation, which has been referred to in the detention order, has not been furnished to the detenu. Though non-furnishing of the same initially may not be taken serious note of, when a representation is made seeking supply of a copy of the said Government Order to make an effective challenge to the detention order, such request ought to have been considered properly and the failure to do so and the mechanical rejection of such request amounts to denial of reasonable opportunity to make an effective challenge to the order of detention. On that score alone, the order of detention is liable to be set aside.

6. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 30.11.2015, made in C.No.42/ Detention/C.P.O/TC/2015, passed by the second respondent, the Commissioner of Police, Tiruchirappalli City, Tiruchirappalli and directs the release of the detenu, by name Sivasankar, aged about 30 years, S/o.Angamuthu forthwith, if his continued custody is not authorised in specific cases or by any other detention order. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar.

To:

1.The Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai 600 009.

2.The Commissioner of Police, Office of the Commissioner of Police, Tiruchirappalli City, Tiruchirappalli.

3.The Superintendent of Central Prison, Central Prison, Tiruchirappalli.(In duplicate to communicate the detenu)

4. The Joint Secretary to Government Public (Law and Order)Department, Fort St.George, Chennai.

5. The Commissioner of Police, Tiruchirappalli.

6. The Director General of Police, Tiruchirappali.

7. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1CC to Mr.K.A.S.Prabhu, Advocate, SR.No. 483. ORDER MADE IN H.C.P(MD)No.1710 of 2015 05.01.2016 AM/20.01.2016/PM.MP/3P/10C